Clews v. Cnty. of Schuylkill

• Decision Date: 30 August 2021
• Docket Number: No. 20-2216,20-2216
• Citation: 12 F.4th 353
• Parties: Scott P. CLEWS; Joseph S. Pothering; Debra M. Detweiler, Appellants v. COUNTY OF SCHUYLKILL
• Court: U.S. Court of Appeals — Third Circuit

12 F.4th 353

Scott P. CLEWS; Joseph S. Pothering; Debra M. Detweiler, Appellants

v.COUNTY OF SCHUYLKILL

No. 20-2216

United States Court of Appeals, Third Circuit.

Argued on March 10, 2021

Opinion filed August 30, 2021

Edward M. Brennan (Argued), 306 Mahantongo Street, Pottsville, PA 17901, Counsel for Appellants

Christopher L. Scott (Argued), David L. Schwalm, Thomas Thomas & Hafer LLP, 225 Grandview Ave, 5th Floor, Camp Hill, PA 17101, Counsel for Appellee

Before: SMITH, Chief Judge, McKEE and AMBRO, Circuit Judges

OPINION OF THE COURT

AMBRO, Circuit Judge Employees of state and local governments are typically protected by federal employment laws such as the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq . But not so for the personal staff of elected officials. Determining who is a member of an official's personal staff can be a fact-intensive and often murky inquiry. In this case of first impression for our Circuit, we distill two themes for analyzing the personal staff exception that flow from the FLSA, its regulations, and precedents in other circuits, particularly the Fifth Circuit's approach in Teneyuca v. Bexar County , 767 F.2d 148, 151 (5th Cir. 1985).

Three former Deputy Coroners claim their employer, the County of Schuylkill, violated the FLSA by failing to pay them overtime and then firing them in retaliation for seeking overtime pay. The District Court granted summary judgment in favor of the County, concluding that all three Plaintiffs were personal staff of the County's elected Coroner and thus cannot bring an FLSA claim. While we agree with the Court that the County did not forfeit the personal-staff-exception argument, granting summary judgment was not called for, as there are still material factual disputes concerning the exception's applicability to the Plaintiffs. Hence we vacate its decision and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

In Pennsylvania, each county has an independently elected coroner. See 16 Pa. Stat. and Cons. Stat. Ann. § 401(a)(4) (West 2021). Since January 2012, Dr. David Moylan has been the elected Coroner in Schuylkill County. In that role, his main responsibility includes investigating the cause and manner of deaths in the County, especially those involving suspicious circumstances or criminal acts. See id. § 1218-B. In addition to Dr. Moylan, the Coroner's office consists of Dr. Joseph A. Weber, the Chief Deputy Coroner, as well as many Deputy Coroners.

All three Plaintiffs—Scott P. Clews, Joseph S. Pothering, and Debra M. Detweiler—worked as part-time Deputy Coroners for the County. It also concurrently employed each in another capacity. Clews was a Deputy Coroner between 2008 and 2016 while working full time as a 911 operator. Pothering worked as a Deputy Coroner for 11 years between 2008 and 2019 and was also a 911 operator before retiring in 2018. Detweiler became a Deputy Coroner in 2014 and concurrently served as a certified field appraiser in the tax assessor's office. A former Coroner, Joseph Lipsett, hired Clews and Pothering, while Dr. Moylan hired Detweiler.

For most counties, including Schuylkill, the relevant Pennsylvania statute acknowledges only one "deputy" coroner who may be appointed by the Coroner to act in his place. See 16 Pa. Stat. and Cons. Stat. Ann. § 1211-B (West 2021).¹ Despite this statutory constraint, for historical reasons many people (possibly around twenty at the time of Detweiler's hiring) hold the title of Deputy Coroner in Schuylkill County, though they are also referred to as "investigators." Suppl. App. at 12; Oral Arg. Tr. 9:9–14. As Deputy Coroners, the Plaintiffs were dispatched by the Coroner or Chief Deputy Coroner to a scene of death to investigate and determine its cause. Typically their work involved examining bodies, taking photographs, conducting interviews, attending autopsies, and transporting bodies to and from funeral homes. When on site, they wore professional-looking attire and carried identification badges. After completing an investigation, they called either the Coroner or the Chief Deputy Coroner to report their findings.

The County paid Deputy Coroners a flat rate, which meant the Plaintiffs did not receive overtime pay even if they worked more than forty hours per week across all their positions for the County. The County's then-Human Resources Director, Martina Chwastiak, believed this payment structure violated the FLSA and expressed concerns to her supervisors on several occasions. Chwastiak also informed Dr. Moylan about the overtime-pay requirements, which would affect those who worked other jobs with the County (such as the three Plaintiffs).

In 2016, Dr. Moylan approved the termination of two of the Plaintiffs, Clews and Pothering, ostensibly so the County would not need to pay them overtime. See Suppl. App. at 20 (Dr. Moylan stating he "approved the terminations ... because of that 40-hour rule"). Based on Chwastiak's request, the County's Board of Commissioners also voted to approve those terminations (which included a third Deputy Coroner, Kyle Koury, who is not a party to this lawsuit). For reasons unclear from the record, only Clews was immediately separated from the Coroner's office. Pothering separated temporarily in 2017 but did not completely stop working as a Deputy Coroner until May 2019. The record is also unclear on when and why Detweiler was terminated or if she ever stopped working at the Coroner's office.² See Clews v. Cnty. of Schuylkill , 461 F. Supp. 3d 142, 146 (M.D. Pa. 2020) ; Oral Arg. Tr. 23:22–24:5.

In November 2017, the Plaintiffs filed an action in the Court of Common Pleas of Schuylkill County, which the County then removed to federal District Court. The complaint sought damages for alleged violations of the FLSA's overtime wage and retaliatory-discharge provisions. In its answer to the complaint, the County stated that the "[P]laintiffs are not entitled to any recovery ... because they were, and are, exempt from the minimum wage and/or overtime requirements of the FLSA." App. at 34. Following discovery, the parties filed cross-motions for summary judgment. The County then argued specifically that the Plaintiffs were not covered by the FLSA due to the personal staff exception. The Plaintiffs responded that the County forfeited this affirmative defense by failing to raise it in answering the complaint, but the District Court rejected this argument. On the merits of the personal staff exception, the Court sided with the County, holding that the Plaintiffs were members of Dr. Moylan's personal staff and therefore not covered by the FLSA. The Court thus granted summary judgment in favor of the County on all claims without reaching the substance of the alleged FLSA violations. The Plaintiffs timely appealed to us.

II. JURISDICTION AND STANDARDS OF REVIEW

The District Court had federal question jurisdiction under 28 U.S.C. § 1331 over this FLSA case, and we have appellate jurisdiction per 28 U.S.C. § 1291. We review the District Court's decision regarding "the waiver of an affirmative defense for abuse of discretion." Sharp v. Johnson , 669 F.3d 144, 158 (3d Cir. 2012).

As to the District Court's grant of summary judgment, we exercise plenary (that is, unrestricted) review. See Baloga v. Pittston Area Sch. Dist. , 927 F.3d 742, 751 (3d Cir. 2019). "Summary judgment is appropriate only where ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ " Id. at 751–52 (quoting Fed. R. Civ. P. 56(a) ). "A dispute is ‘genuine’ if ‘a reasonable jury could return a verdict for the nonmoving party.’ " Id. at 752 (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). Like the District Court, our role is not to weigh the evidence and assess its veracity, but instead we review the facts in the light most favorable to the nonmoving party. Id.

III. DISCUSSION

The Plaintiffs press two arguments on appeal. First, they contend that the County forfeited the personal-staff-exception argument. Second, even if the defense was not forfeited, they argue that the District Court erred by granting summary judgment in favor of the County given there are genuine disputes of material fact with respect to applying the personal staff exception. We address each issue in turn.

A. Forfeiture of the Personal-Staff-Exception Defense

Typically, an "affirmative defense ... must be included in a responsive pleading or may be considered [forfeited]." Sharp , 669 F.3d at 158 ; see also Fed. R. Civ. P. 8(c)(1). While we have not directly addressed whether an exception to the definition of "employees" under federal employment laws is an affirmative defense, the Supreme Court noted that "the general rule [is] that the application of an exemption under the Fair Labor Standards Act is a matter of affirmative defense on which the employer has the burden of proof." Corning Glass Works v. Brennan , 417 U.S. 188, 196–97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974) ; see also Schmidt v. Eagle Waste & Recycling, Inc. , 599 F.3d 626, 632 (7th Cir. 2010) ; Oden v. Oktibbeha Cnty. , 246 F.3d 458, 467 (5th Cir. 2001).

The parties here accept that the personal staff exception to the FLSA is an affirmative defense. Under our precedents, "affirmative defenses may be raised at any time, even after trial, so long as the plaintiff suffers no prejudice." Sharp , 669 F.3d at 158. To establish prejudice, the Plaintiffs must show the County's failure to raise the specific defense "deprived [them] of an opportunity to rebut that defense or to alter [their] litigation strategy accordingly." In re Sterten , 546 F.3d 278, 285 (3d Cir. 2008).

We agree with the District Court that the Plaintiffs were not prejudiced by the County's failure to mention specifically the personal staff exception in its answer to the complaint. It is telling that, while the Plaintiffs contend that they were "greatly prejudiced," Pls.’ Br. at 10, they...